February 16, 2007

Putting in time in the historical archive, reading the correspondence of Supreme Court Justice Thomas Ruffin, Eric Muller ran across a letter written to the Justice in 1824 by former state attorney general named Henry Seawell, describing the oral argument in the great case of Gibbons v. Ogden:

"The council in argument begin so low, as scarcely to be heard," Seawell writes, "and gradually swell until they fairly rave; then they gently subside into a soft whisper. Their gesticulation is menacing, both to the Court and the bystanders, and an equal portion of all they say, is distributed to every part of the hall."

As Muller notes, this is not the way the lawyers do oral argument today. Hammy oratory is no longer at all acceptable.

People were different in the past, and we may forget that. But people were also the same, even in some ways where we've been assuming they were different.

Reading Gibbons v. Ogden today, we tend to titter when we get to the line "Commerce, undoubtedly, is traffic, but it is something more: it is intercourse."

Personally, when I teach Gibbons, I never read that line out loud. It sounds too ridiculous, and it's pointlessly distracting. Only once in 20 years has a student introduced the word into the discussion. We're sort of being polite, giving John Marshall credit for using a word that obviously couldn't have conveyed sexual meaning at the time.

But check out Seawell's letter:

"According to a definition given to the word 'Commerce' by the Atto. Genl. that it means 'intercourse,' I shall soon expect to learn, that our fornication laws are unconstitutional: for the favorite doctrine now is, that all the powers which Congress possesses are exclusive – and consequently the sole power of acting upon that subject is transferred to them."

He got the double entendre and thought it was cool to joke around about it in a letter to his pal the Supreme Court Justice in 1824.

Apparently time has not diminished our appreciation for double entendre.

The jury is the rogue's gallery, watching the actors pursue their roles on the courtly stage. The good lawyers run the gamut of emotions and put on a good show using drama, comedy, satire, parody, and the entire range of human emotions. The bad lawyers are one dimensional and worthy of contempt. The Judge, representing GOD, or Solomon, observes from an elevated position.

The wisest writings of the best of humanity must ultimately play to the unwashed masses. As in Roman times, the response of the rogue's gallery to all the posturing is ultimately the humbling plebeian gesture of 'thumbs up or thumbs down'.

It is difficult to distinguish between intercourse and the law. Both penetrate the deepest held values and beliefs each of us hold near and dear.

I did a doctoral paper on Guilllaume DuFay (renaissance composer/cleric) in which he hid a set of fairly off color lines in the midst of a sacred motet. You had to line the text up vertically to see it. It was obvious he did.

Sex, unlike the law, is timeless. It seeps into everything and that our founding fathers enjoyed a romp in the hay is both refreshing and witty and puts a human fingerprint on the debate.

Pardon my entendre, but you've really got to get into the "intercourse." "Schwebs" used to do it (discuss only, of course) with the undergrads - you'd be surprised how seriously they took it. If Juniors and Seniors can handle it, why can't law students? And it is such a crucial passage that, to me, if you ignore it, you're missing a huge teaching point. I can't remember if Church went over it (but, then again, Church uses a chainsaw to edit the cases). All I'm saying is, give the students a chance, I think you're selling them short...

1. Literally, a running or passing between, hence,2. Communication; commerce; conection by reciprocal dealingsbetween persons or nations;either in common affairs and civilities; in trade or correspondence by letters.We have an intercourse with neighborsand friends in mutual visits and in social concerns; nations and individuals have intercourse with foreign nations or individuals by an interchangechange of commodities, by purchase or sale, by treaties, contracts, &c.3. Silent communication or exchange.

[Middle English entercours, commercial dealings, from Old French entrecours, from Latin intercursus, a running between, interposition, from past participle of intercurrere, to mingle with : inter-, inter- + currere, to run; see kers- in Indo-European roots.]